HL Deb 25 March 1986 vol 472 cc1285-95

3 p.m.

The Earl of Swinton

My Lords, I beg to move that the House do resolve itself into Committee on this Bill.

Moved, That the House do resolve itself into Committee.—(The Earl of Swinton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 [Instruments of government and articles of government]:

Lord McIntosh of Haringey moved Amendment No. 1 Page 1, line 16, at end insert ("and every such order shall ensure that the articles of government shall include provision for the appointment of a Children's Ombudsman as provided by Schedule (Children's Ombudsman) to this Act").

The noble Lord said: I rise to move Amendment No. 1 and with it I will speak to Amendment No. 101, which is the meat of the amendment and forms a new schedule to be inserted before the existing Schedule 1. This is one example of the wisdom of the Government in having a Long Title for the Bill simply to amend the law relating to education, which enables us to make positive suggestions for the improvement of our educational system in this country, even though the particular measures that we propose do not form part of the Bill as it stands.

The measure that I am now proposing is a constructive measure that fits in with the general theme of the Bill; that is, of opening up our schools more widely to democratic participation and of dealing with some of the problems of secrecy and injustice that have occurred in many schools in the past. Not only in terms of the Long Title of the Bill but also in terms of the Bill's professed purposes, this amendment ought to find favour with the Government.

I believe and hope that we are moving away, as we proceed with the passage of this Bill, from the kind of school that my own children first attended, where there was a paint mark across the playground just inside the gate that announced, "No parents beyond this point". I hope that there is less of that nowadays, though it has been known to happen. I am sure other Members of the Committee have had experience of such themselves, or with their own children.

It is not just a matter of access to the schools, and neither is it a matter just of the composition of the governing bodies. With this Bill, there is an opportunity for us to make a positive contribution to making provision for an Ombudsman to be appointed by a local education authority, to deal with any cases of injustice that may survive the other measures proposed in the Bill.

It is necessary to state why we are proposing such an amendment now and not simply relying upon the local authority Ombudsman, who has been well established and whose position has been well established successfully for many years. The trouble with the local authority Ombudsman—the commissioner for administration—is that his terms of reference exclude complaints about the internal affairs of schools and colleges. In other words, any action undertaken by a local education authority in the exercise of functions under Section 23 of the Education Act does not fall within the terms of reference of the local authority Ombudsman; nor does any action concerning the giving of instructions, whether secular or religious; the conduct, curriculum, internal organisation, management or discipline of any school, college of education or further education establishment maintained by a local authority.

A Department of the Environment circular states that, in effect, that rules out the investigation of complaints about how pupils are taught and what they are taught; and about the rules and conduct of the institution, including the imposition of sanctions such as suspension and punishment. That exclusion from the terms of reference of the local authority Ombudsman extends to the governors of voluntary schools.

Nobody wants an education system in which constant appeals are being made to independent authorities. In seeking to improve the terms of this Bill throughout the Committee stage, it is certainly our intention to ensure that as few as possible complaints cannot be resolved in other ways and are forced to go before a Children's Ombudsman of the type that we are now proposing. I assure the Committee that it is our intention, as we move amendments today and on future days, to seek the more efficient achievement of the objectives of the Bill rather than to seek to destroy it.

However, there will inevitably be occasions when, however much we improve procedures in Committee or at later stages of this Bill, they will not be wholly satisfactory and may give rise to justified complaint. That has proved to be the case in all other areas of local authority administration, and indeed of central administration with the Parliamentary Commission for Administration. I believe that the acceptance of the success of those other Ombudsmen is a matter of agreement between the parties. The extension of the same principle to our eduction system ought also to be a matter for agreement between them. I hope that the Government will feel the same way as we do about this matter, and will agree that this amendment is a constructive improvement to the Bill.

This is not an innovatory suggestion. In Norway—which, after all, is where the Ombudsman originated, both in terms of the name and the concept—they already have a young person's Ombudsman. I believe that enough work has been done in local authorities, and in particular by the Inner London Education Authority, to show that such an idea is practicable. Even if there are defects in the wording of the amendment, I hope that the Government will find themselves able to agree with the principle behind it. I beg to move.

Lord Kilmarnock

As the noble Lord, Lord McIntosh, has said, this is not an entirely new idea. Indeed, the Allliance included it in its manifesto for elections to the Inner London Education Authority, a copy of which I have before me. So I am not vying with the noble Lord for the parentage of the suggestion but I am supporting him in what he says. All of us feel that it is a good idea and one that the Government should take very seriously.

We believe that for the most part the educational bureaucracy of ILEA genuinely attempts to make itself accessible and helpful to parents. Nevertheless, there are times when parents feel shut out and frustrated by the system and need independent, outside help. The Ombudsman as proposed in the amendment would have the right to seek information direct from the educational officer and publish recommendations for action. That would apply not simply to ILEA but up and down the country. On those grounds, we on these Benches would like to support the amendment.

Lord Taylor of Blackburn

I support this amendment and look forward to its implementation as a new enlightenment to the Bill. The one point that I should like to make to the Committee this afternoon is that we should remember that we are not dealing just with the ILEA. The educational system does not comprise of ILEA alone. There are 103 local education authorities in England and Wales. Our minds must be spread throughout the country's educational system. If we do that from the very beginning, and do not think just of the ILEA, we shall get off to the right start.

I think that this is a very good move and I hope it is one that the Government will take on board. It would be very useful. Many difficulties arise from time to time and an Ombudsman will be someone to whom parents and other people can point and say, "That is where we can go if we are not getting satisfaction". It is a good move in the right direction.

The Earl of Swinton

I start off by being a damp squib. I must resist this amendment on two grounds. First, the provision is wrongly placed, and I take the point made by the noble Lord, Lord McIntosh, that this is perfectly acceptable under the Long Title of the Bill. In spite of that, I feel that this is not a matter which falls to be dealt with in the individual schools' articles of government. It would have to be a free standing duty on LEAs.

Having said that, the Government consider the setting up of an arrangement for a Children's Ombudsman to be wholly inappropriate and a costly new duty to lay on LEAs. The noble Lord, Lord Taylor of Blackburn, has reminded us that there are 103 education authorities in the country. That would mean 103 Children's Ombudsmen and I hate to think what that would cost the ratepayers and taxpayers of the country.

Parents need no new statutory provision to enable them to make representations to the LEAs or governing bodies about their children's schooling. As a normal matter of administrative law such complaints require to be considered and answered. If parents continue to be dissatisfied they may take up the matter through their local councillor or refer the matter to the local commissioner for administration. Again, I take the point of the noble Lord, Lord McIntosh, that there are aspects into which the local commissioner is not entitled to look; but I submit to your Lordships that these are points which are very much covered by this Bill and are just the matters which the governors, who will have far more parents among them, will have the powers to consider. Even then, if parents are still not satisfied they may complain to the Secretary of State, who has certain limited powers of intervention under the education Acts, where powers have been abused or duties neglected.

I simply cannot see that it is necessary to add to these structures, particularly when this Bill is providing so many further opportunities for parents to influence their children's schooling through the reconstitution of governing bodies and new arrangements for annual meetings for parents, as the noble Lord, Lord McIntosh of Haringey, said.

There will be a change under the Bill and I feel that to bring in yet another stage of administrative expense would serve very little useful purpose. The greater independence to be enjoyed by the reconstituted governing bodies and their responsiveness to parents should not only help to prevent complaints from arising in the first place but also assist in resolving any complaints that do arise. Therefore, I ask the noble Lord to withdraw the amendment.

3.15 p.m.

Lord McIntosh of Haringey

That is not only a damp squib but I suspect the Minister has actually taken the squib and thrust it into the red bucket which stands behind the door and next to the teacher's desk. I consider it to be a wholly unsatisfactory reply. I am disappointed that the Minister should have felt it necessary to read it out as he did.

I fully accept that it can be argued that the amendment has come in the wrong place. I fully accept that it can be an imposition to ensure that it is inserted into the articles of government rather than becoming a responsibility of the local education authority itself. But all the experience we have of a central government Ombudsman and all the experience of local authority Ombudsmen has shown that what was originally a matter of controversy, and originally a matter where there were even party political viewpoints as to whether these Ombudsmen were desirable, after the institution of the Ombudsmen has ceased to be a matter of controversy.

There is virtually total agreement that where Ombudsmen have been established they have performed a useful function and that they have not become an excessive burden on the administration of either central government or local government: and I say the latter as one who referred many complaints to my noble friend Lady Serota in my time as a councillor. I do not believe that it caused excessive hardship for the local authority to accept that here was a case of last resort and here was an opportunity to right an injustice which otherwise could not be dealt with by the normal procedures.

It is a matter of plain fact—the noble Earl acknowledged that the local authority Ombudsmen's powers are limited with respect to our schools and colleges—and surely a matter of simply completing a process which has become widely accepted and recognised as being a valuable part of our administrative procedures that we should extend the principle of an Ombudsman to our schools and colleges.

I understand my noble friend's point that this is not of course only about the Inner London Education Authority. If I refer to the ILEA it is only in the sense of congratulating it and the existing administration of the ILEA—I would say to the noble Lord, Lord Kilmarnock—for instituting, not just in an election address but, in practice, a pilot scheme for appointing a Children's Ombudsman in London and for inviting the Young Person's Ombudsman from Norway to come here and advise on how the scheme should be set up.

If the noble Earl had indicated that he would support a pilot scheme along the lines of that proposed by the ILEA I might have been more inclined to withdraw my amendment. If he had given any indication of support for the principle behind this amendment I would have been happy to take it away, improve the wording and perhaps bring it back in another form on Report. I have been given no such indication and under the circumstances—I gladly give way.

Baroness Carnegy of Lour

Before the noble Lord decides what to do with his amendment, can he say whether he does not think that it is a gross insult to young people of 16, 17 and 18 years of age to have their affairs dealt with by someone called the Children's Ombudsman? It is a monstrous idea to put such a title in the Bill.

Secondly, does he really think that this idea, which is certainly an interesting one, should be dealt with in this way solely in relation to schools? I should have thought that if we are thinking about a Children's Ombudsman it should be about children—and they are younger than that—and should not be confined to schools. If we refer to young people up to the age of 18 that should not be confined to schools, either. Can the noble Lord tell the Committee how he can suggest such a title and how he can confine it to schools and think that that is a proper proposal?

Lord McIntosh of Haringey

I have a great deal of sympathy with what the noble Baroness said. It is explicit in the amendment that pupils over the age of 16 should take over from their parents the right to make application to the Ombudsman. In that sense the content of the amendment, if not the wording, ought to meet with her approval and it recognises the responsibility which young people of 16, 17 and 18 years of age have for their own lives as distinct from that which their parents have for them.

I am bound to say that I think the noble Baroness has a very valid point in saying that the word "children's" is inappropriate and that we should have done better to table the amendment with a "young persons' Ombudsman" as they have in Norway. The noble Baroness also has a point which could well be an extension to the amendment about the extension to further and higher education. I do not think that it invalidates the amendment but it is certainly a point where, if the Committee see fit to support this amendment, it would be appropriate to extend the position to further and higher education. I would gladly seek the support of the noble Baroness in proposing such an amendment at a later stage.

Having acknowledged the inadequacies of the wording in the way pointed out to me, and having acknowledged earlier the possibility that the amendment is in the wrong place I still feel, in view of the blanket condemnation of the amendment and the lack of any give from the Government, that unless the noble Earl has anything else to add it would be appropriate for me to seek the feeling of the Committee.

The Earl of Swinton

The only thing I can add is that I do not think I have ever implied or delivered criticism of the work of the Ombudsman, and I am delighted to see the noble Baroness, Lady Serota, sitting on the Bench opposite. That was not my idea. My point was simply that parents will still have a right to go to the Ombudsman when they have a complaint about education. So far as concerns a young persons' Ombudsman, certainly if such an appointment were practicable, I imagine that it would bring in the social services, children in care and goodness knows what else. I should not have thought that it could possibly have been the responsibility of the local education authority.

In view of what has been said, I can only say to the noble Lord, Lord McIntosh, that I think the drafting of this amendment may be so defective that it would be a great mistake for him to try to obtain the agreement of the Committee to it.

Lord McIntosh of Haringey

I listened carefully to what the noble Earl said. He has not made any advance in his attitude toward the amendment, but in view of what he has said and the remarks of the noble Baroness, I think it is probably best if I take back the amendment now and return with one which has less defective wording. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Bishop of London moved Amendment No. 2: Page 2, line 6, at end insert— ("( ) In the case of aided and special agreement schools any function not allocated to the local education authority, the governing body or the head teacher by this Act or any other enactment shall be a function to be discharged by the governing body.").

The right reverend Prelate said: Before I speak to this amendment, let me express my regret that I was not with your Lordships for the Second Reading of the Bill. I was fulfilling a long-standing engagement to conduct a mission in Nova Scotia, where I can assure the Committee that I was a great deal colder than I should have been in this Chamber.

The purpose of this amendment is wholly in accordance with the objects of the Bill. Its purpose is to have enshrined in law a decision which was made in 1913 in the case of Gillow v. Durham County Council on appeal to this House, which is known generally as the Gillow case. That decision provided that any function relating to the operation of a non-provided school (as it was then) which is not assigned by the articles of government belongs to the governing body unless and until it is assigned by virtue of a change to the articles or by superarching legislation.

We wish to propose this amendment because of hypothetical cases which can occur. Perhaps I may take a rather far fetched situation as an example. Suppose that a local education authority decided that it wished to introduce security guards at the front gates of every school. I think that governing bodies, generally speaking, would regard such a proposal as counterproductive and unwise. There is nothing at all about security guards in the articles, and there is not likely to be even when they are drawn up under this Bill, but who would have the right of final decision?

On the basis of the Gillow judgment it would be the governing body and not the local education authority. That is the position that we want to see established not merely by case law and precedent but by primary legislation. I think it is all the more important in view of the fact that it is proposed that the Department of Education and Science should hand over to the local education authorities the total responsibility for making articles of government.

The noble Earl, Lord Swinton, when he introduced the Second Reading of the Bill, gave welcome assurances about the safeguards which were available to voluntary schools in any revision of their articles, but he did not touch upon the issue of unassigned functions. He spoke at length and the Bill deals in detail with how a voluntary school can control what will go into its articles, but neither the noble Earl nor the Bill as drafted deals with the problem of what in the future will prove to be significantly missing from the articles. That is why we want to suggest that the Gillow decision should be embodied in the law—to remove any doubt once and for all.

It may well be argued that Clause 15 of the Bill covers the case. That is certainly arguable: but if it does cover it, I find it hard to see how anybody could object to this amendment being embodied in the Bill at this stage. The point is that the current interpretation of Clause 15 and the effect of the Gillow judgment might not be held by those responsible in the future, especially as it is a very general clause referring to all governing bodies and making no reference to the special position of aided schools, which is the sense of our amendment. I hope that I shall not have to press this amendment to a decision by the Committee. I understand that there is no real difference between us and the department on the significance of this point and the importance of the decision, and I hope that the Minister will be able to give an assurance that this matter can be satisfactorily dealt with. I beg to move.

Lord Renton

There does not seem to me to be any religious or educational principle at issue in this amendment but I think that it is one which the Government should carefully consider from the technical and administrative points of view. When Parliament has allocated certain functions to a body created by statute, it is assumed by the court that it has only those functions which are expressed to be there. I should like to offer a Latin tag, if the Committee can bear to hear it, especially in a version coloured by a lawyer's pronunciation. It is expressio unius est exclusio alterius; if we express one and we should have said one or more things, we are deemed to have excluded those which are not expressed. I must confess that I do not know which functions have been left not covered by statute but, as the right reverend Prelate has said, it would be best to remove the doubt. Therefore, I hope that the Government will seriously consider this amendment.

Baroness Vickers

I should like very much to support this amendment which has been very well adumbrated by the right reverend Prelate. I hope that the Minister will recall the splendid work that has been undertaken by churches of all denominations for generations and will consider enshrining the Gillow principles in this Bill. I think it is really necessary to do this for many reasons, and especially to protect the voluntary schools.

I gather that the amendment has the backing of all denominations. I see that the noble Earl, Lord Longford, has put his name to it and so has the noble Baroness from the opposite Benches. I understand that the Catholic Education Council is in agreement with the amendment and I hope that, as the noble Earl is not here to express this support, it nevertheless still means that it will give it its backing. I understand that there is support for the proposal put forward by the right reverend Prelate.

Surely it is not too much to ask that the model instruments and articles be published in the Bill, especially as it is likely that with the formation of new committees it will help the new members when they wish to discuss matters with the local education authority.

In his remarks on Second Reading, the Minister stated: I know there is some anxiety among those concerned with voluntary schools".—[Official Report, 10/3/86 Col. 419]. The Minister, in giving assurances about the safeguards available to voluntary schools in any revision of the articles, regrettably made no mention of the issue of unassigned functions, which has just been mentioned briefly by the right reverend Prelate. I shall look forward particularly to his reply on this point.

3.30 p.m.

Neither he nor the noble Lord dealt with the problem of the future. To deal succinctly with the articles enshrining the Gillow principle in law will remove, I think, all the doubt in this area once and for all. The local authorities' members may perhaps object on the grounds that the amendment will take certain powers from the hands of the LEA and transfer them to the governing body. My contention is, on the basis of the Gillow principle, that those powers do not belong to the LEA and are not being taken out of their hands. If the LEA think at some time in the future that particular functions ought to be in their hands, it is open for them to seek to revise the articles accordingly, using the perfectly acceptable procedure which is set out in Clause 2 of the Bill.

I should like very much to support what the right reverend Prelate has said so eloquently, and I hope that the noble Lord the Minister will be able to accept the amendment.

Baroness Phillips

I should like to support this amendment for various reasons, one of which gives me the opportunity to pay tribute to the work of the voluntary schools. I think we are rather apt to overlook the role that they play in our educational system.

I was chairman of governors of a Catholic school for many years, and I have been concerned with their work in London. I think it is significant that a table recently published of the schools to which people wanted to send their children, in order of importance and preference, certainly put the voluntary schools very much at the top. You can ask why. I have questioned many parents on this, and one of the reasons was that they found that they are well run, that they have a philosophy of belief which is encompassed in their education, and that they have a unique situation in our educational system.

While the situation now may not be difficult, there is always the possibility that a local education authority will want in some way to deprive the voluntary schools of certain of their functions. I think this amendment will safeguard that, and it is important that it is enshrined in legislation. I hope that for many years we shall maintain the number of voluntary and Church schools that we have, because of their unique quality, the remarkable pupils they turn out, and the fact that they do certain things that I am afraid that even in this day and age the public school sector cannot do.

The Earl of Swinton

The Government recognise the legitimate concern of the Churches to ensure that functions which have traditionally been exercised by aided and special agreement school governing bodies under articles of government cannot, under the new provisions in Clause 1 for the LEA to make instruments and articles of government, be removed from them. The Government share this objective. However, I have to say that we disagree with the right reverend Prelate on the basis for this argument.

The Government do not believe that there is a general principle to be extracted from the 1912 Gillow case, which related to a point of construction in the Education Act 1902. In any event, the 1944 Act represented a break from the previous scheme of things, providing a fresh start with functions to be allocated as seen best in articles of government subject to the overriding requirements of legislation. I am aware that the Churches have obtained a contrary opinion from that of the Government about the continuing relevance of the Gillow case. The Committee will be well aware that it is not entirely unknown for lawyers to reach conflicting opinions on the same point. The Government's view of the matter is supported by parliamentary counsel.

The amendment proposed purports to deal with those matters which are not covered by the primary legislation. It does, I suggest, have serious weaknesses. There is already substantial prescription on the allocation of functions—particularly as regards controlled schools—in existing legislation, and this will be extended by the present Bill. The Government believe that the allocation of functions not covered by the primary legislation should be made according to what is appropriate to the particular case. The Bill has been carefully drafted to ensure that these options are appropriately open.

For aided schools, in many respects it will be appropriate for the governing body to have the responsibility for these not otherwise assigned functions because it is acknowledged that they have, and should continue to have, greater autonomy from the LEA. Perhaps I may take a specific example The Education Acts are silent about the appointment and dismissal of non-teaching staff at aided schools. We believe that the 1944 Act implies that care and maintenance staff are employed by the governing body, but I stress this is not explicit. However, articles of government have traditionally provided for non-teaching staff to be employed by the governing body, with one notable exception: almost invariably school meals staff are employed by the LEA. This amendment would mean that these staff had to be employed by the governing body. I am not sure this is necessarily what the Churches would want. The amendment would also cause problems for LEAs in making articles of government, because it could well conflict with the requirement in Clause 2(1)(c) that they have regard to the way the school has previously been conducted.

The Government believe that what is proposed in the Bill does, in effect, meet the Churches' concern. The substantial safeguards that are proposed for voluntary schools mean that they need not tear a whittling away of their distinctive powers in the new situation; indeed, we should be most distressed if it were otherwise, and no one more than myself, being an ex-member of a diocesan education committee and still a governor of a Church of England aided primary school.

The procedure is that, before new instruments and articles are made for voluntary schools, the local education authority will be bound by the extensive prescription in legislation and then required to have regard to the way in which the school has been conducted. We have already agreed that model documents should also be available for guidance, though doubtless—and this will please my noble friend Lady Vickers—we will discuss this further in the context of the right reverend Prelate's next amendment. The local education authority would then have to secure the agreement of the governing body (and the foundation governors on any matters that are of particular concern to them) or, in the case of a new school, the agreement of their shadow governing bodies.

In the absence of agreement, either side may refer the issue to the Secretary of State for his determination. It goes without saying that, in making such a determination, the Secretary of State must have regard to the merits of each particular case. At any time, the governors (or, as the case may be, foundation governors) may propose a change in the governmental documents which the local education authority will be under a duty to consider. Again, if there is not agreement on how to proceed, either side may refer the matter to the Secretary of State for his determination. All this, in fact, represents a substantial improvement as far as the majority of voluntary schools are concerned—those in the primary sector for which articles currently fall to be made by the local education authority without such safeguards.

One question still remains: what of matters on which both primary legislation and articles are silent? I think this is a point my noble friend Lord Renton was making. The answer is in Clause 15(1), as, indeed, the right reverend Prelate said. Anything not specifically assigned falls within the conduct of the school; responsibility for that is vested in the governing body. In other words, Clause 15(1) achieves a large part of what this amendment attempts to do.

However, as I said at the beginning of this short speech, I acknowledge the strength of feeling expressed on this matter. I hope it is recognised why the amendment in its present form is unacceptable. However, I think that there may be a way forward. I know that a meeting is arranged for 10th April between my right honourable friend the Secretary of State for Education and Science, the right reverend Prelate the Bishop of London and his colleague the Bishop of Menevia. That meeting will provide a useful forum for this complicated matter to be discussed further and I have every confidence that agreement can be reached at that meeting. If this amendment is withdrawn, I undertake that the Government will, at the next stage, reflect any agreement at the meeting with any necessary amendment. Having said that, I invite the right reverend Prelate to withdraw this amendment.

The Lord Bishop of London

I am most grateful to the noble Earl for his careful and detailed answer. Clearly, there still remain certain differences between us with regard to the significance of the particular case and its practical implications. However, in view of what the noble Earl has said about his willingness to reconsider the matter and the meeting that I shall be having with the Secretary of State, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hooper

This may be a convenient moment to take the Statement. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.